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[2006] ZAFSHC 157
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Mokone and Another v S [2006] ZAFSHC 157 (14 September 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION
)
Appeal No.: A203/2004
In the appeal between:
LEFU
ISAK MOKONE AND ANOTHER
Appellants
and
THE
STATE
Respondent
CORAM:
C.J.
MUSI, J et MATHEBULA, AJ
_____________________________________________________
HEARD
ON
:
20
FEBRUARY 2006
JUDGEMENT
BY:
MATHEBULA,
AJ
DELIVERED
ON:
14
SEPTEMBER
2006
[1] The
appellant, accused number one, was convicted in the Senekal Regional
Court of housebreaking with intent to steal and theft
(count 2) and
attempted murder (count 3). He was sentenced to 7 years imprisonment
on count 2 and 10 years imprisonment on count
3. The regional
magistrate ordered that 2 years of the sentence on count 2 should be
served concurrently with the sentence on count
3. He is now
appealing against the sentences.
[2] The
version of the state was narrated by the complainants viz Pieter
Cornelius de Koning and Clavina Johanna Heydenrych. On the
5
th
February 2000 they arrived at their farm from church. Before leaving
for church they had ensured that all the windows and doors
were
properly locked.
[3] On
their arrival their small dog began barking in the house. While they
were in the corridor of the house, a man appeared from
the bedroom.
He had a firearm in his hand and fired one shot at them. They were
only approximately 2,5 metres from him. The husband
pulled the wife
out of danger and the bullet missed both of them. Thereafter they
fled the house to their motor vehicle. They turned
and saw a man
standing at the kitchen door. They drove away from the farm and
summoned the police.
[4] They
returned with the police to the farm. They found one of the windows
broken. They also found a spent cartridge and half
a bottle of wine
on the floor. Mr Heydenrychâs firearm, which was in a cabinet, was
missing. The police found fingerprints on
the bottle of wine which
matched those of the appellant.
[5] In
matters of this nature, the court of appeal is circumscribed to
interfere with the findings of the trial court. In
Rex
v Dhlumayo and another
1948 (2) SA 677
(A) at 705, the court held that there must inter alia
be a cognisable misdirection by the trial court to necessitate such
interference.
Although the appeal is against sentence, it is
important to ensure that the convictions were in order to warrant the
sanction imposed.
[6] Mrs
Liebenberg submitted that the accused was correctly convicted because
there was overwhelming evidence that he was in the house.
His
fingerprints were found on the bottle of wine in one of the rooms and
he made some pointing out. She argued that the court
a quo was
correct to make an inference that the appellant is the one who
removed the firearm from the safe and shot at the complainants.
[7] In
her submission, on sentence, she argued that the sentence viewed in
isolation is unreasonable but on this occasion the court
a quo
ordered that of the sentence of charge number 2 must run concurrently
with charge number 3. Her view was that the sentence
was not
shockingly inappropriate. She stated that aggravating factors were
that the appellant must have thoroughly planned the crime
by
monitoring the complainantsâ movements, a firearm was stolen which
was used against the complainants which could have resulted
in
devastating effects. She urged us to dismiss the appeal.
[8] Mr
Pretorius submitted that the sentence was both harsh and
inappropriate. The court a quo over-emphasized the seriousness of
the offence over the personal circumstances of the appellant. The
court a quo did not take into account that the appellant was a
20
year old first offender who has been incarcerated for seventeen (17)
months before he was sentenced. Further that there were
no injuries
sustained by the complainants and the minimal value of the stolen
goods. He urged us that the effective terms of fifteen
(15) years
imprisonment be reduced to twelve (12) years.
[9] I
cannot agree with Mrs Liebenberg that the conviction on charge number
3 i.e. attempted murder was in order. The court a quo
correctly
found that the appellant was in the house of the complainants on the
6
th
February. He was properly convicted of housebreaking with intent to
steal and theft. The complainantsâ cell phone and firearm
were
found in possession of accused number 2. The cellphone was stolen
from the house on the 30
th
January. The firearm was stolen from the house on the 6
th
February. I respectfully differ from the regional magistrate in
finding that accused number 2 is only guilty of receiving stolen
property knowing it to be stolen on count 2. It is highly improbable
that a thief will on different occasions steal goods from the
complainantsâ house and they end up in the possession of accused
number. 2. The probabilities point to the fact that accused number
2
broke into the complainantsâ house. It is not an unreasonable
inference that accused number 1 and 2 were in the complainantsâ
house on the 6
th
February. The fact that the appellant was in the house does not
necessarily follow that he is the one who fired a shot on that day.
The complainants saw a man whom they cannot identify and it will be
dangerous to make the only inference that it was the appellant.
It
could have been another person who was him and acted as such without
his knowledge and blessing. I am of the view that the court
a quo
misdirected itself and therefore I shall use my inherent review
powers to review the conviction on count 3.
[10] It
is trite that the court of appeal should not lightly interfere with a
sentence imposed by the trial court. See
S
v Pillay
1977 (4) SA 531
(A) at 535 E âF and
S
v Pieters
1987 (3) SA 717
(A) at 728 B â C. The court may interfere if the
trial court misdirected itself or the sentence is shockingly
inappropriate.
I have painstakingly considered the sentence imposed
on charge number 2. It is shockingly severe and therefore
inappropriate.
The appellant was a young man of twenty years who was
a first offender and had been incarcerated for seventeen (17) months
before
his sentence. The items stolen were returned to their
rightful owners and were of minimal value. The wide disparity in the
crime
and sentence suggests that the court a quo exercised its
discretion to the detriment of the appellant. I am of the view that
three
(3) years imprisonment will be appropriate. I am at liberty to
interfere with the sentence imposed by the regional magistrate.
[11]
Accordingly
I make the following order:-
11.1 Conviction and
sentence on charge number 3 of attempted murder is reviewed and set
aside.
11.2 Conviction
on charge number 2 of housebreaking with the intent to steal and
theft is confirmed.
11.3 Sentence
on charge number 2 is set aside and substituted with three years
imprisonment.
11.4 I
direct that in terms of Section 280 (2) Act No 51/1977 that one year
of this sentence run concurrently with any other sentence
he may be
serving at the moment.
11.5 The
aforegoing sentence shall be deemed to have been imposed on 25
th
July 2001.
____________________M.A.
MATHEBULA, AJ
I
concur
____________________
C.J.
MUSI, J
On
behalf of Appellant: Mr. K. Pretorius
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf of the Respondent: Adv. I. Liebenberg
Instructed
by:
Director of Public
Prosecutions
BLOEMFONTEIN